digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1996 The Executioner’s Face is Always Well-Hidden: The Role of Counsel and the Courts in Determining Who Dies Michael L. Perlin New York Law School, [email protected] Follow this and additional works at: https://digitalcommons.nyls.edu/fac_articles_chapters Part of the Jurisprudence Commons, and the Law and Psychology Commons Recommended Citation New York Law School Law Review, Vol. 41, Issue 1 (1996), pp. 201-236 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. "THE EXECUTIONER'S FACE IS ALWAYS WELL-HIDDEN'": THE ROLE OF COUNSEL AND THE COURTS IN DETERMINING WHO DIES MICHAEL L. PERLIN* I. INTRODUCTION The common wisdom is that death penalty cases play out on a landscape that pits the forces of retribution and punishment against the forces of abolition and rehabilitation. Supporters, or so the simplified version goes, applaud the death penalty for insuring that the perpetrators of the most wanton and vilest murders receive the ultimate penalty. Opponents, again oversimplifying, argue both that the penalty is immoral (that the state does not have the moral authority to take the life of another, no matter how depraved the crime) and inherently inequitable (that for a combination of racial, class, and political biases, it is impossible to create a system in which only the truly worst-of-the-worst capital defendants are subject to a death sentence). Arguments, both pro and con, vacillate between high-end theory and street anecdote. The pro-death penalty literature often appears to combine Immanuel Kant and the New York Post; the anti-literature substitutes Albert Camus and the Village Voice. On September 1, 1995, New York joined thirty-seven other states' in allowing for legal executions.' Much of the debate over the passage of the death penalty act tracked these philosophical and anecdotal arguments. Yet, when the inevitable parade of death-eligible defendants comes before the trial courts, two issues-never mentioned by supporters, and rarely cited by opponents-often have the most significant impact on who is to be executed and who is not: (1) the adequacy of counsel provided to individuals facing the death penalty; and (2) the way that counsel, judges and juries develop and construe mental disability evidence in death penalty cases. Because these issues are so rarely discussed in public fora, the * BOB DYLAN, A Hard Rain's A-Gonna Fall, on THE FREEWHEELIN' BOB DYLAN (Columbia Records 1963). ** Professor of Law, New York Law School; A.B., Rutgers University, 1966; J.D., Columbia University School of Law, 1969. The author wishes to thank Jayne South for her helpful research assistance, and Douglas Mossman, M.D., for his helpful comments on an earlier draft. This article is adapted from a presentation given at the 21st annual conference of the Tri-State Chapter of the American Academy of Psychiatry and Law, at Mt. Sinai Medical Center, New York City, Jan. 20, 1996. 1. See Around the Nation, Wash. Post, Sept. 2, 1995, at A2. 2. See N.Y. CRIM. PROC. LAw § 400.27 (McKinney Supp. 1995). NEW YORK LAW SCHOOL LAW REVIEW [Vol. 41 public has little sense of their significance to ultimate death decision- making. As a result of so little attention being paid to these issues in so many cases where the death penalty is actually ordered and carried out, "the executioner's face," quoting from Bob Dylan's chilling song, A Hard Rain's A-Gonna Fall, "is often well hidden." This paper will proceed in the following manner. First, I will provide a brief overview of what we know about both variables-that is, adequacy of counsel and the construction of mental disability evidence. Then, I will look at the New York statute and offer some predictions as to how these variables may likely play out in New York cases (with a few thoughts about how they have developed in New Jersey in the fourteen years since it reinstated the death penalty). Finally, I will seek to contextualize both of these variables through three jurisprudential filters to which my attention has increasingly turned in recent years: "sanism," "pre- textuality," and "therapeutic jurisprudence." I. THE VARIABLES A. Provision of Counsel An examination of the full range of death penalty cases that have been litigated in the past twenty years since the United States Supreme Court's decision in Gregg v. Georgia,3 holding that the death penalty was not necessarily a violation of the Eighth Amendment's ban on cruel and unusual punishment,' suggests one undeniable truth: in an amazingly high number of cases, the most critical issue in determining whether a defendant lives or dies is the quality of counsel. As suggested by one veteran death penalty litigator, "[t]he death penalty will too often be punishment not for committing the worst crime, but for being assigned the worst lawyer.' 3. 428 U.S. 153 (1976). 4. See id. at 187; James S. Liebman & Michael J. Shepard, Guiding Capital Sentencing Discretion Beyond the "Boiler Plate": Mental Disorder as a Mitigating Factor, 66 GEo. L.J. 757 (1978); see generally 3 MICHAEL L. PERLIN, MENTAL DISABILITY LAW: CIVIL AND CRIMINAL § 17.08 (1989) (discussing the impact of mental disorder on the penalty phase of capital punishment litigation). 5. Stephen Bright, Death by Lottery-ProceduralBar of Constitutional Claims in Capital Cases Due to InadequateRepresentation of Indigent Defendants, 92 W. VA. L. REV. 679, 695 (1990) [hereinafter Bright, Death by Lottery]; see Stephen Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime, but for the Worst Lawyer, 103 YALE L.J. 1835 (1994); see also David Dow, Teague and Death: The Impact of CurrentRetroactivity Doctrine on CapitalDefendants, 19 HASTINGS CONST. L.Q. 23, 61 (1991) (noting that the correlation is statistically significant); Gary Goodpaster, The 1996] "THE EXECUTIONER'S FACE IS ALWAYS WELL-HIDDEN" The responsibilities of lawyers in death penalty cases are legion. The attorney must develop a meaningful relationship with a client who is likely the target of public and media animosity, and whose unpopularity may taint the quality of that relationship; thus, she must find a way to "humanize" her client.6 She must investigate for mitigating evidence,' obtain expert defense witnesses,8 investigate to rebut aggravating evidence, 9 and attempt to negotiate a plea bargain where appropriate."0 If a guilty verdict is rendered, she must be prepared to make informed strategic decisions about the penalty phase." Look at cases randomly. Or, choose a group that involves, say, felony murder, or potentially biased jurors, or a tainted confession, or any other sorting device. If these cases are carefully read (in some cases, not very much care is needed, to be sure), the significance of counsel leaps off the page.'2 No one has seriously contradicted Professor Welsh White that "[t]he single greatestproblem with our system of capital punishment is the quality of representation afforded capital defendants." 3 Trialfor Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. REv. 299, 317 (1983) (explaining why counsel's role is even more critical in death cases than in other criminal prosecutions). 6. Welsh S. White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 U. ILL. L. REv. 323, 361 (1993). 7. See id. at 340-41. 8. See id. at 342-43. 9. See id. at 344-45. 10. See id. at 368-74. 11. See id. at 356-68. See generally Laurin Wollan, Representing the Death Row Inmate: The Ethics of Advocacy, Collateral Style, in FACING THE DEATH PENALTY: ESSAYS IN CRUEL AND UNUSUAL PUNISHMENT 92 (Michael L. Radelet ed. 1989) (discussing the representation of death row inmates in collateral proceedings); James M. Doyle, The Lawyers'Art: "Representation" in Capital Cases, 8 YALE J.L & HUMAN. 417 (1996) (discussing the importance of shaping a client's image). On the intractable question of an attorney's responsibility when her client desires to waive post-conviction proceedings in a capital case, see State v. Martini, 677 A.2d. 1106 (N.J. 1996) (holding that defendant could not waive post-conviction purview). 12. On the role of counsel generally in death penalty cases, see TASK FORCE ON DEATH PENALTY HABEAS CORPUS, AMERICAN BAR ASS'N, TOWARD A MORE JUST AND EFFECTIVE SYSTEM OF REVIEW IN STATE DEATH PENALTY CASES 49-76 (1990) [hereinafter ABA REPORT]; Panel Discussion, The Death of Fairness: Counsel Competency and Due Process in Death Penalty Cases, 31 HOUS. L. REv. 1105 (1994). On the role of counsel generally, see Symposium, Toward a More Effective Right to Assistance of Counsel, 58 LAW & CONTEMP. PROBS. 1-138 (Winter 1995). 13. White, supra note 6, at 376 (emphasis added). NEW YORK LAW SCHOOL LAW REVIEW [Vol. 41 A HarvardLaw Review survey article is blunt: "[t]he utter inadequacy of trial and appellate lawyers for capital defendants has been widely recognized as the single most spectacularfailure in the administration of capital punishment." 4 This inadequacy is so pervasive, the survey concludes, as to by itself make the death penalty "unconstitutionally arbitrary. "15 Professor Bruce Green, relying on similar data, also reasons that-in reality-many of the defendants who have been tried, convicted and sentenced6 to death have been deprived of their constitutional right to counsel.' Why is this? Many reasons have been offered, but one starting point is Douglas Vick's recent analysis: The literature is replete with impressionistic, anecdotal, and empirical evidence that indigent capital defendants are routinely denied assistance of counsel adequate to put into practice the protections that on paper make the death penalty constitutional.